Sunset commissions whose work is done to prevent regulatory creep

The current battle between the legislature and the governor about board appointments touches on who actually governs the citizens of North Carolina.

Most administrative boards have rule-making authority that makes them like “little” legislatures. So in the current dispute, it’s obvious from a constitutional standpoint, the state legislature should control the lions share of administrative board appointments.

But in so doing, we should challenge the legislature to not stop there, but use this as a starting point for a much larger initiative to reform the state administrative bodies.

Being a former regulator with the NC Division of Coastal Management (NCDCM), the administrative board I am most familiar with is the Coastal Resources Commission (CRC). We’ll use them as an example for this discussion.

The CRC has been around for a long time. It was created by the Coastal Area Management Act (CAMA) in 1974, so it will be 50 years old next year.

Unlike some other boards, the CRC has been very attentive to its rule making. They have left no stone unturned regarding coastal issues. Because of this, the CRC has a body of rules that are highly refined and effective. There isn’t anything new or earth shattering that we’ll see there in the future.

Unless regulatory commissions are intended to last forever, the CRC presents the opportunity for a pilot project whereby the legislature subjects state administrative boards to a “sunset” review.

The logical process should be that these commissions develop a set of rules and refine these over many years. When these rules are mature and function well, the legislature converts the rules into state statutes, and dissolves the commission.

We could call this a “Sunset Legislative Review.” Here, the commission rules will be further refined by the democratic process of legislative debate in regards to their intent, function, and importance. A debate by ELECTED officials, and not appointed commission members.

The CRC represents some of the lower-hanging fruit that could be subjected to a process like this, without the state suffering any loss or degradation of natural resources or the state’s permitting authority.

The danger of allowing administrative bodies to continue indefinitely is of them running out of things to do. Because of this, as we will see in a minute, they begin pursuing the regulation of activities outside their legislative authority, purpose, and intent. After all, a government body will find a way to justify its continuous existence.

A somewhat humorous example of this problem is the CRC wandering into the idea that mowing is a permit-required development activity under the CAMA. Being intimately familiar with the NC coastal culture personally, I would credit mowing as an essential recreational pastime widely practiced by the coastal bred and born. So what could possibly go wrong?

Now, to be fair, the CRC is trying to make out that they have the authority to regulate the mowing of marsh. Marsh is revered by the CRC, and they view ANYTHING affecting the sacred coastal marsh wetlands as subject to their authority. But the law doesn’t say that, and the law doesn’t give them authority over mowing as a “development” activity.

If the legislature had intended the CRC to have that authority, they would have said so. After all, the legislature could have made the law say anything they wanted. And what they leave out is just as important as what they put in!

In a recent court case regarding the CRC’s regulation of mowing, in one hand I held up a sheet of paper for the judge on which was printed the statute lining out the “development” activities CAMA regulates. In the other hand I had a black Sharpie. I asked if anyone in the room would kindly circle the word “mowing.”

Now NCDCM (representing the CRC) had dispatched, not just one, but four attorneys to the proceeding. And even though the challenge was no more difficult than one of those word-search games on the back of the child’s menu at Cracker Barrel, none of them chose to engage in the challenge.

In the end I lost the case, not on the issue necessarily, but because the Wake County judge confessed that coastal issues were complex and unique, and that he simply didn’t understand. Basically, he hadn’t really considered coastal marsh and would be more observant next time at the coast on vacation, etc., etc. Bottom line, judges, when they’re confused, just side with the state by default.

Interestingly enough, unofficially, NCDCM field staff, in practice, have wisely chosen to forego enforcement of the issue. Why? Because, as a practical matter, Down East Miss Lela and Mr. Jasper aren’t experts in coastal marsh identification, and they have been mowing that low spot in the yard for the last 30 years. At least someone in government has sense enough to recognize the whole escapade is because the CRC needed a new pseudo-cause to champion.

So what happens to the other matters managed by commissions once the board’s dissolved? Well, in the case of the CRC, once the rules are adopted into state statutes, any remaining responsibilities can be handled by the director of the NCDCM, and contested cases can be handled by District Courts or the Office of Administrative Hearings.

I am well aware that “God is in the details,” and that this idea will face aggressive opposition from the pro-big government forces on the left. However, it is possible if people are willing to think differently and try.

If conservatives are truly interested in limiting the reach and impact of government, they need to start here. Let’s finish the job of commission reform.